Citation Nr: 0014613
Decision Date: 06/02/00 Archive Date: 06/09/00
DOCKET NO. 89-04 637 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for hearing loss.
2. Entitlement to service connection for skin cancer either
on a direct basis or as due to exposure to ionizing radiation
during service.
3. Entitlement to service connection for a kidney disorder
either on a direct basis or as due to exposure to ionizing
radiation during service.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
J.R. Bryant, Counsel
INTRODUCTION
The veteran serve on active duty in the U.S. Army from
December 1945 to January 1946 and in the U.S. Navy from June
1952 to July 1956.
This matter originally came to the Board of Veterans' Appeals
(Board) on appeal from rating decisions in January 1988 and
September 1994 by the RO. This case was previously before
the Board in 1989, 1992, 1993, 1995 and 1998 and remanded for
additional development and adjudication.
FINDINGS OF FACT
1. The veteran failed to appear for VA audio and ear
examinations in October 1998, December 1998, January 1999,
and June 1999 scheduled for the purpose of determining
whether he was suffering from hearing loss due to noise
exposure in service.
2. There is no competent evidence of a nexus between the
veteran's current hearing loss and an inservice injury or
disease.
3. During the veteran's military service, he was exposed to
radiation during Operation UPSHOT-KNOTHOLE.
4. There is no competent evidence of current skin cancer or
a kidney disorder.
CONCLUSIONS OF LAW
1. The veteran is not shown to have hearing loss due to
disease or injury which was incurred in or aggravated by
active military service. 38 U.S.C.A. § 1110, 5107(a), 7104
(West 1991 & Supp. 1999).
2. A well-grounded claim of service connection for skin
cancer as a residual of exposure to ionizing radiation has
not been presented. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1131, 5107(a), 7104 (West 1991 & Supp. 1999); 38 C.F.R.
§ 3.303, 3.307, 3.309, 3.311 (1999).
3. A well-grounded claim of service connection for a kidney
disorder as a residual of exposure to ionizing radiation has
not been presented. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1131, 5107(a), 7104 (West 1991 & Supp. 1999); 38 C.F.R.
§ 3.303, 3.307, 3.309, 3.311 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
Service medical records show that he was treated in August
1954 for otitis media and for pain in the right ear in June
1955. These records also show that in December 1945 he was
found unfit for duty due to severe acne of the face. In July
1956, the veteran was evaluated for complaints of a tender
area beneath the right ear. The examining physician noted a
small tender node. According to the separation examination
report dated in June 1956, the veteran's hearing was 15/15
for whispered voice for both ears, indicative of normal
hearing. The records are otherwise negative for complaints,
findings or treatment pertaining to skin cancer or a kidney
disorder.
In a statement in support of his claim, dated in September
1987, the veteran indicated that he had nodes which appeared
and spread all over his body. He stated that in July 1956 a
physician told him that he could feel a small node beneath
the right ear. The veteran asserted that since his exposure
to nuclear radiation particles while in service the nodes had
spread to other parts of his body. The veteran also
contended that he had hearing loss due to noise exposure in
service.
Post-service evidence of record includes VA laboratory
reports dated in October 1986 which show the veteran's
creatinine level was high, at 1.9. A pathology report dated
in March 1987 described a specimen of tissue from the pinna
of the veteran's right ear. The pathologist provided a
diagnosis of actinic keratosis with cornu cutaneum formation,
completely excised.
In a December 1987, statement the veteran asserted that
exposure to radiation during service caused him to develop
skin cancer on two occasions. He stated that a few years
earlier he had developed skin cancer and that a private
physician had surgically burned or removed cancerous areas
from a number of places on his body. He indicated that he
had again developed skin cancer in the last year. He
reported that more recent skin cancer had been treated by
another private physician.
Records dated from May 1988 to January 1990, from the
veteran's private physician M. Hall, M.D., show the veteran
complained of hearing loss, attributing it to exposure to the
loud blasts of atomic bomb tests. He noted the veteran had
slightly decreased hearing to spoken voice. The veteran also
reported a history of radiation exposure in service. The
veteran's creatinine level was 1.9. Dr. Hall noted the
evaluated creatinine level and indicated that it would be
watched very closely. The clinical impression was renal
insufficiency. Dr. Hall informed the veteran that the renal
insufficiency possibly could have been related to the
radiation exposure.
In May 1991, the veteran submitted a letter from the Defense
Nuclear Agency (DNA). The DNA's report, dated in November
1987, indicated that a careful search of dosimetry data
revealed no records of radiation exposure for the veteran.
However a scientific dose reconstruction indicated the
veteran would have received a probable dose of 2.2 rem gamma
for his activities at Shot GRABLE. This dose could range
from a possible high of 4.4 rem gamma to a possible low of .8
rem gamma. The reconstruction report indicated that due to
the distance of the veteran's unit from ground zero, he had
virtually no potential for exposure to neutron radiation.
On VA examination in February 1992, the veteran reported that
his private physician had found a decrease in kidney
function. On examination the veteran had several
subcutaneous nodules, the largest of which was 7 centimeters
in the right anterior abdomen. The second was in the left
mid-abdomen. There was one in his axillary area and a 5-
centimeter nodule in the left thigh. The veteran reported
that the nodules were larger, occasionally itched and caused
mild discomfort. He denied any flank frequency, dysuria,
hepatitis or infection. There was evidence of some mild
prostate problems. A VA laboratory report compiled in
February 1992 shows the veteran's creatinine level was 1.9 in
October 1986, 1.7 in March 1991 and 1.5 in February 1992.
The lab report marked the 1.9 and 1.7 levels as high and the
1.5 level as normal. The clinical impression was multiple
subcutaneous tumors consistent with lipomas enlarged in size,
at this point not in critical area, however, given history
and the fact that they are enlarging, excisional biopsy of an
offending tumor might be indicated; history of reduced kidney
functioning, on submitted documentation. The veteran denied
a history of kidney stones or lower tract significant
symptoms that might be a contributing factor.
On VA examination in October 1993, the examiner physician
reviewed the veteran's medical records. He noted that
earlier evaluations had shown slightly elevated blood urea
nitrogen, and creatinine levels at the upper limits of normal
or slightly elevated, indicating some possible renal
dysfunction. The examiner indicated that the veteran had
some transient decrease in renal function which had improved.
The examiner also noted that a previous spine X-ray had
revealed some stones in the veteran's left kidney. The
examiner reported that a careful check of the veteran's
medical record did not reveal any record of a skin cancer
being noted or removed. The examiner concluded that the
veteran had a history of exposure to ionizing radiation with
multiple lipomas on his anterior abdomen that have been
stable. The veteran had an incidental findings of kidney
stones and noted elevated kidney tests which had corrected to
normal over the past year.
Outpatient treatment records dated from November 1992 to May
1993 show continued evaluation for complaints of lipomas,
hearing loss and complaints kidney dysfunction. In January
1993 the veteran reported that he had lost 40 percent of his
kidney function due to radiation exposure.
In a VA audiological examination in July 1997, pure tone
thresholds in the right ear on audiometric testing were 25,
35, 70, 90 and 100 decibels, respectively, at 500, 1,000,
2,000 3,000 and 4,000 Hertz. The thresholds in the left ear
at the same frequencies were 25, 25, 45, 75 and 85 decibels.
Speech audiometry revealed speech recognition ability of 88
percent in the right ear and of 92 percent in the left. The
audiological testing results were summarized as mild to
profound sensorineural hearing loss in the right ear and a
mild to severe sensorineural hearing loss in the left ear.
Specifically, the examiner did not provide the etiology of
the current hearing loss, nor did he determine whether or not
there was any possible relationship between the veteran's
military service and his claimed hearing loss.
Pursuant to the Board's September 1998 remand the RO
requested additional private treatment records and scheduled
the veteran for medical examinations in October 1998. In a
November 1998 statement the veteran indicated that he had no
additional records. He failed to report for the
examinations.
The veteran was scheduled for VA examinations, including an
audio and ear examination. He reported for a genitourinary
examination in December 1998 but did not appear for the audio
examination scheduled that same month and did not provide a
justification for his failure to report.
On VA examination in December 1998, the veteran reported that
according to his private physician he had lost 20 percent of
the function in both kidneys. The veteran reported urinary
frequency of 15-20 times per day and 4-5 times at night.
There was no hesitancy or dysuria and the stream was good.
The veteran reported that he leaks occasionally but does not
have to wear a diaper or appliance. He had a history of
kidney stones three years ago that were operated on. There
was no nephritis or impotence. The veteran reported that
there has been no affect on his daily activities and that he
had worked as a truck driver until last July. On examination
the penis and testicles were normal with no deformity. The
epididymis was normal and the spermatocord was described as
"okay". Erectile power was not elicited. The anus
appeared normal and digital exam of the rectal walls was
described as "okay". The prostate was 2+ enlarged and
several vesicles were not felt. There was no evidence of
fistula. The right testicle was 2x3 centimeters and the left
testicle was 3x4 centimeters, both soft in consistency. The
peripheral pulses were good. A lab report shows the
veteran's creatinine level was 1.4. The diagnosis was normal
kidney function for age. The examiner concluded that
radiation exposure had not affected the veteran's kidney
function.
The veteran also is shown to have failed to report for VA
audio and ear examinations scheduled in January 1999 and
rescheduled in June 1999.
Analysis
The preliminary requirement for establishing entitlement to
any VA benefit is that the applicant submit a claim which is
sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991 & Supp. 1999). The United States Court
of Appeals for Veterans Claims (Court) has defined a well-
grounded claim as "a plausible claim, one which is
meritorious on its own or capable of substantiation." Such
a claim need not be conclusive but only possible to satisfy
the initial burden of 38 U.S.C.A. § 5107. Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990). If the claim is not
well grounded, the veteran cannot invoke the VA's duty to
assist in the development of the claim. 38 U.S.C.A.
§ 5107(a) (West 1991 & Supp. 1999).
In order for a claim of service connection to be well
grounded, there must be competent evidence of a current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence) and of a nexus between the in-service disease or
injury and the current disability (medical evidence). The
nexus requirement may be satisfied by a presumption that
certain diseases manifesting themselves within certain
prescribed periods are related to service. Caluza v. Brown,
7 Vet.App. 498 (1995).
The Court has indicated that a claim may be well grounded
based on application of the rule for chronicity and
continuity of symptomatology, set forth in 38 C.F.R.
§ 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997).
The Court held that the chronicity provision applies where
there is evidence, regardless of its date, which shows that a
veteran had a chronic condition either in service or during
an applicable presumption period and that the veteran still
has such condition. That evidence must be medical, unless it
relates to a condition that the Court has indicated may be
attested to by lay observation. If the chronicity provision
does not apply, a claim may still be well grounded "if the
condition is observed during service or any applicable
presumption period, continuity of symptomatology is
demonstrated thereafter, and competent evidence relates the
present condition to that symptomatology." Savage, 10 Vet.
App. at 498.
The law provides that service connection may be granted for
disability which is shown to have been incurred in or
aggravated by active military service. Additionally, the
veteran can be granted service connection for certain
disabilities, including hearing loss, if manifested to a
degree of 10 percent or more within one year of the veteran's
separation from service. 38 U.S.C.A. §§ 1110, 1131 (West
1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309(a) (1999).
I. Hearing Loss
The veteran was scheduled for VA examinations in order to
assist in the development and adjudication of his hearing
loss claim now presented on appeal. He failed to appear for
the examinations and did not provide a justification for his
refusal. Importantly, the claims folder contains no evidence
that the notification mailed to the veteran regarding the
scheduling of the examinations was returned to the RO as
undeliverable. Under the circumstances, the Board finds that
good cause for his failure to report has not been
demonstrated, and that no further development, including
attempts to obtain medical opinions, is thus warranted.
Under VA regulations, when a claimant, without good cause,
fails to report for an examination scheduled in conjunction
with an original compensation claim, the claim shall be
decided based on the evidence of record. 38 C.F.R.
§ 3.655(b) (1999).
In this case, the medical evidence tends to establish that
the veteran developed hearing loss after separation from
military service. Hearing loss was not diagnosed during
service and the medical evidence of record contains no
clinical reference to symptoms before 1997, almost 40 years
after service discharge. There is no competent evidence of
hearing loss of service onset. Thus, the second prong of
Caluza is not satisfied, as there is no evidence that the
veteran incurred hearing loss in service.
The medical evidence has demonstrated no continuity of
symptomatology between 1956 and 1997 and the veteran has not
brought forth any competent evidence that would establish a
nexus between his current symptoms and active military
service. The VA audiometric examination report, dated in
July 1997, demonstrates that the veteran currently has a
legally cognizable hearing disability as defined by VA
regulation. See 38 C.F.R. § 3.385 (1999). At that
examination the VA examiner simply diagnosed bilateral
sensorineural hearing loss and did not specifically attribute
the veteran's hearing impairment to his military service. No
additional post-service medical records that discuss the
etiology of the veteran's hearing acuity have been obtained
and associated with the claims folder.
Consequently, the Board must conclude that the claims folder
contains no competent evidence associating the veteran's
bilateral hearing loss, which was first documented 40 years
after his separation from service, to his active military
duty. Competent medical evidence of a nexus between current
disability and a veteran's active military service is
required for a finding of a well-grounded claim. See Jones
v. Brown, 7 Vet.App. 134 (1994). Such evidence is lacking in
this case. In other words, no one with sufficient expertise
has provided an opinion that the veteran has a bilateral
hearing disability which is traceable to his military
service, either having its onset during service or as the
product of continued symptoms since service. Consequently,
the veteran's claim of service connection for bilateral
hearing loss must be found to be not well grounded.
The only other evidence submitted in support of the veteran's
claim are his assertions and contentions. "[L]ay assertions
of medical causation cannot constitute evidence to render a
claim well grounded under § 5107(a); if no cognizable
evidence is submitted to support a claim, the claim cannot be
well grounded." Tirpak v. Derwinski, 2 Vet.App. 609, 611
(1992). Grottveit v. Brown, 5 Vet.App. 91, 93 (1993).
Without competent evidence of a nexus between current hearing
loss disability and service, the veteran's claim for service
connection for hearing loss is not well-grounded, and must be
denied.
II. Skin Cancer and Kidney Disorder
With respect to disabilities claimed to be the result of
exposure to ionizing radiation, such presumptions may be
found at 38 C.F.R. §§ 3.309(d) and 3.311 (1999). Service
connection for disability that is claimed to be attributable
to exposure to ionizing radiation during service can be
demonstrated by three different methods. First, if a veteran
exposed to radiation during active service later develops one
of the diseases a listed in 38 C.F.R. § 3.309(d), a
rebuttable presumption of service connection arises. See 38
C.F.R. §§ 3.307, 3.309 (1999). The diseases listed in 38
C.F.R. 3.309(d) are ones in which the VA Secretary has
determined that a positive association with radiation
exposure exists. Second, service connection may be
established if a radiation-exposed veteran develops a
"radiogenic disease" (one that may be induced by ionizing
radiation, either listed at 38 C.F.R. § 3.311(b) or
established by competent scientific or medical evidence that
the claimed condition is a radiogenic disease), if the VA
Undersecretary of Benefits determines that a relationship, in
fact, exists between the disease and the veteran's radiation
exposure in service. Third, service connection may be
established by competent evidence establishing the existence
of a medical nexus between the claimed condition and exposure
to ionizing radiation during active service. See Combee v.
Brown, 34 F.3d 1039 (Fed.Cir. 1994). See also Davis v.
Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet.
App. 67, 71 (1997).
Initially, the Board finds that the veteran is "radiation-
exposed veteran" as defined at 38 C.F.R. § 3.309(d). A
radiation exposed veteran is one who, while serving on active
duty, active duty for training, or inactive duty training,
was exposed to a radiation risk activity. Radiation risk
activity is defined as participation in Operation UPSHOT-
KNOTHOLE as an atmospheric nuclear test conducted by the
United States from March 17 to June 20, 1953. 38 C.F.R.
§ 3.309(d)(3)(I), (iv) (I) (1999).
For purposes of 38 C.F.R. § 3.311, the term "radiogenic
disease" means a disease that may be induced by ionizing
radiation and shall include the following: (i) All forms of
leukemia except chronic lymphatic (lymphocytic) leukemia;
(ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer;
(v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii)
Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer;
(xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary
bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple
myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-
malignant thyroid nodular disease; (xviii) Ovarian cancer;
(xix) Parathyroid adenoma; (xx) Tumors of the brain and
central nervous system; (xxi) Cancer of the rectum; (xxii)
Lymphomas other than Hodgkin's disease; (xxiii) Prostate
cancer and (xxiv) Any other cancer. 38 C.F.R. § 3.311(b)(2)
(1999).
The veteran contends that he has skin cancer and a kidney
disorder developed as a consequence of exposure to ionizing
radiation during service. While skin and kidney cancers are
among the diseases listed as a "radiogenic disease" (i.e.,
one that may be induced by radiation exposure) listed at
§ 3.311(b), that fact, alone, is not dispositive of the
appeal. Kidney disorders, including renal insufficiency are
not a disease listed in paragraph (b)(2) and do not warrant
service connection on a presumptive basis.
In the determination of whether a well grounded claim for
service connection based upon ionizing radiation exposure
under 38 C.F.R. § 3.311 has been presented, at a minimum, the
following threshold elements must be met: (1) established
presence of a radiogenic disease; (2) the claimant must have
had service; (3) the disease may not be one covered as
presumptively service connected under §§ 3.307 or 3.309 and
manifested within the applicable presumptive period of §
3.311(b)(5); (4) the claimant must contend the radiogenic
disease was the result of exposure to ionizing radiation, and
(5) there is a positive dose estimate. Wandel v. West, 11
Vet. App. 200, 205-05 (1998); see also Hilkert v. West, 12
Vet. App. 145.
Neither skin cancer nor a kidney disorder are shown in the
veteran's service medical records or the medical treatment
following his discharge from service in 1956. Moreover, at
the present time, the record does not include medical proof
of the existence of the disabilities which the veteran claims
are related to service. As a result, the requirements for
well-grounded claims have not been presented, and service
connection for skin cancer and a kidney disorder must be
denied.
After initially reviewing the veteran's appeal, the Board
remanded the case to secure medical records from his private
physician. The RO requested that the veteran provide
information regarding any additional post-service treatment
for his claimed disabilities. The veteran did not provide
any additional evidence.
The only evidence supportive of an etiological relationship
to military service is the theory advanced by the veteran
himself. The Board has considered the veteran's contentions
and although he has described the nature of his current
problems and the circumstances in which he believes they
arose, there has been no proffering of objective evidence by
competent medical authority that he has skin cancer or a
kidney disorder at the present time which can be attributed
to exposure to ionizing radiation or military service. The
competent evidence in this case does not provide a basis for
favorable action on the veteran's claim.
ORDER
1. Entitlement to service connection for hearing loss is
denied.
2. Entitlement to service connection for skin cancer either
on a direct basis or as due to exposure to ionizing radiation
during service is denied.
3. Entitlement to service connection for a kidney disorder
either on a direct basis or as due to exposure to ionizing
radiation during service is denied.
LAWRENCE M. SULLIVAN
Member, Board of Veterans' Appeals